Thursday, June 23, 2005

SCOTUS to Kelo: Drop Dead

It's a sad day for America. The US Supreme Court severely restricted the property rights of ordinary citizens in its decision in the Kelo v. New London case:
Institute for Justice: Property Rights Cases: New London, CT: "Washington, D.C. - Today, the U.S. Supreme Court delivered a blow to home and small business owners throughout the country by allowing the government to use eminent domain to take homes so that businesses can make more money off that land and possibly pay more taxes as a result."
Tycho and I have written about this topic previously, when hopes were still high that The Court would protect citizens from thieving, local governments. Sadly, instead the previous protections have been gutted. SCOTUSblog has more on the story.

Justice John Paul Stevens wrote the abortion that is the majority opinion. He was joined in his treachery by Justices Steven Breyer, Ruth Bader Ginsberg, David Souter, and Anthony Kennedy. "Swing voter" Kennedy, showing once again that he is not a reliable vote against ever-expanding government, wrote a separate, concurring opinion, apparently trying to soften the blow slightly.

Justice Sandra Day O'Connor wrote the dissent, which was joined by Chief Justice Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. It reads in part:
KELO V. NEW LONDON: "Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:
"'An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority... A few instances will suffice to explain what I mean... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.' Calder v. Bull, 3 Dall. 386, 388 (1798)" (emphasis deleted).
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings 'for public use' is to wash out any distinction between private and public use of property--and thereby effectively to delete the words 'for public use' from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent.


Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983)."[emphasis added by Abe]
Exactly right, and very well-put. While joining Justice O'Connor's dissent, Justice Thomas also wrote a separate dissent:
KELO V. NEW LONDON: "Long ago, William Blackstone wrote that 'the law of the land... postpone[s] even public necessity to the sacred and inviolable rights of private property.' 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for 'public necessity,' but instead for 'public use.' Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a " '[P]ublic [P]urpose' " Clause, ante, at 9-10 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

I cannot agree. If such 'economic development' takings are for a 'public use,' any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O'Connor powerfully argues in dissent. Ante, at 1-2, 8-13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them."
Thus, Justice Thomas would go further and consider narrowing previous decisions that have opened the hole that the majority just drove its big-government-truck through. Good for him. He goes to considerable length in developing his arguments, which we summarize with this quote, "The most natural reading of the [5th Amendment, 'Takings'] Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever." Readers are invited to read his entire, well-written dissent. Contrary to claims in the racist rantings of Harry Reid, Thomas thinks and writes quite well, thank you.

Note which justices are on the side of "the little guys" and which are favoring the "powerful special interests" in their decision. The court liberals are happy to let government take the property of the politically weak and give it to the well-connected. They should be ashamed of themselves.

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